## Facts

- Cathy Swicegood and Polly Thompson were in a long-term same-sex relationship and lived together in South Carolina.
- After the relationship ended in 2014, Swicegood filed a family-court petition seeking dissolution and related relief based on an alleged South Carolina common-law marriage.
- During the parties’ entire relationship, South Carolina law prohibited same-sex marriage. See S.C. Code Ann. § 20-1-15 (2014) (same-sex marriages declared void and against public policy).
- The family court dismissed Swicegood’s action, concluding it lacked subject-matter jurisdiction because the parties could not have formed a valid common-law marriage under then-existing law.
- Swicegood appealed. While the appeal was pending, the U.S. Supreme Court decided *Obergefell v. Hodges* (2015), recognizing a constitutional right to same-sex marriage and rendering state bans unconstitutional.
- The Court of Appeals remanded to the family court to reconsider the case in light of *Obergefell*.
- On remand, the family court again determined no common-law marriage existed, reasoning that *Obergefell* was decided after the relationship ended and that the proof did not establish a common-law marriage.
- Swicegood again appealed to the South Carolina Court of Appeals.

## Issues

1. Whether, in light of *Obergefell*, a South Carolina statutory ban on same-sex marriage could be treated as an impediment to the formation of a same-sex common-law marriage for a relationship that ended before *Obergefell*.
2. Whether Swicegood proved the elements of a South Carolina common-law marriage—particularly mutual agreement and intent to be married—based on the parties’ conduct during the relationship.

## Decision

- The Court of Appeals affirmed the family court’s determination that no common-law marriage existed.
- The court concluded § 20-1-15 operated as an impediment to forming a same-sex common-law marriage during the relevant time period.
- Independently, the court held Swicegood failed to establish that both parties had the requisite mutual intent and agreement to enter a legally binding common-law marriage.
- Subsequent history: the South Carolina Supreme Court later vacated the Court of Appeals’ reliance on § 20-1-15 as an impediment (treating the statute as void ab initio after *Obergefell*) but affirmed the no-marriage outcome on the separate ground that the parties lacked mutual intent and agreement.

## Legal Principles

- A South Carolina common-law marriage requires capacity to marry and proof of a mutual agreement and intent to be married, shown through conduct and surrounding circumstances.
- The party asserting a common-law marriage bears a heightened burden of proof (clear and convincing evidence) for relationships alleged to have formed before South Carolina ended recognition of new common-law marriages.
- A statutory prohibition on a category of marriages may be treated as a legal impediment to forming a valid marriage during its effective period (as the Court of Appeals reasoned in this decision).
- Even if a legal impediment analysis is set aside, a court may deny recognition of a common-law marriage when the evidence does not show both parties intended to enter a legally binding marital relationship.

## Conclusion

The South Carolina Court of Appeals affirmed dismissal of Swicegood’s dissolution action because she did not establish a common-law marriage with Thompson: the court treated the then-existing statutory ban on same-sex marriage as an impediment and also found the evidence failed to show the parties mutually intended and agreed to be married under common law.


Swicegood v. Thompson, 847 S.E.2d 104 (2020)